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to cruize, &c. “ foreign colony, province, or part of any province, or people, or against any

“ of any person or persons exercising, or assuming to exercise, prince, &c.

any powers of government in or over any foreign state, colony, Majesty shall

province, or part of any province, or people, as a transport or not be at war, “ store ship, or with intent to cruize or commit hostilities against

a misdemeanor. any prince, state, or potentate, or against the subjects or citi-.

“ zens of any prince, state, or potentate, or against the persons

exercising, or assuming to exercise, the powers of government " in any colony, province, or part of any province, or country, or

against the inhabitants of any foreign colony, province, or part “ of any province, or country, with whom his Majesty shall not " then be at war; or shall, within the united kingdom, or any of

his Majesty's dominions, or in any settlement, colony, territory, “ island, or place, belonging or subject to his Majesty, issue or “ deliver any commission for any ship or vessel, to the intent “ that such ship or vessel shall be employed as aforesaid; every “such person so offending shall be deemed guilty of a misde

meanor, and shall, upon conviction thereof, upon any informa“ tion or indictment, be punished by fine and imprisonment, or “ either of them, at the discretion of the court in which such

“ offender shall be convicted.(6) Any person The eighth section enacts, " that if any person in any part of withoutlicence “ the United Kingdom of Great Britain and Ireland, or in any increasing, or procuring to part of his Majesty's dominions beyond the seas, without the be increased, “ leave and licence of his Majesty for that purpose first had and force of any

“obtained as aforesaid, shall, by adding to the number of the ship, &c. in the guns of such vessel, or by changing those on board for other service of any " guns, or by the addition of any equipment for war, increase or foreign prince, « augment, or procure to be increased or augmented, or shall be misdemeanor. knowingly concerned in increasing or augmenting the warlike

force of any ship, or vessel of war, or cruizer, or other armed “ vessel, which at the time of her arrival in any part of the United

Kingdom, or any of his Majesty's dominions, was a ship of “ war, cruizer, or armed vessel, in the service of any foreign

prince, state, or potentate, or of any person or persons exercis“ing, or assuming to exercise any powers of government in or

over any colony, province, or part of any province or people “ belonging to the subjects of any such prince, state, or potentate, “ or to the inhabitants of any colony, province, or part of any

province or country under the controul of any person or persons “ so exercising, or assuming to exercise the powers

of government, every such person so offending shall be deemed guilty of a mis“ demeanor, and shall, upon being convicted thereof, upon any “ information or indictment, be punished by fine and imprison

ment, or either of them, at the discretion of the court before

66 which such offender shall be convicted.” Apprehension Any justice of peace residing at or near any port or place within of offenders; the United Kingdom, where any offence made punishable by this

act as a misdemeanor shall be committed, may issue his war

the warlike

(6). And the ship, with the tackle, &c. is to be forfeited, and may be

seized by the officers of excise, &c. 6. 74

rant for the apprehension of the offender, to bring him before the same or any other justice, who may commit unless bail is given. (a)

It is further enacted, that all such offences as shall be com- And trial for mitted within that part of the United Kingdom called England, offences comshall be tried in the Court of King's Bench at Westminster, and the united the venue laid at Westininster, or at the assizes, or session of kingdom. oyer and terminer and gaol delivery, or at any quarter or general sessions of the peace for the county or place where the offence was committed; that when committed in Ireland they shall be prosecuted in the Court of King's Bench at Dublin, and the venue there laid, or at any assizes, &c. for the county or place where the offence was committed ; and when committed in Scotland that they shall be prosecuted in the Court of Justiciary, or any other Court competent to try criminal offences committed within the county, &c. within which the offence was committed. (6)

The statute also provides for the apprehension of offenders, Apprehension when the offence shall have been committed out of the United and trial of Kingdom, and for their trial in any superior court of his Majesty's where the ofdominions competent to try, and having jurisdiction to try cri- fences have minal offences, at the place where the offence shall have been committed. (c) And with respect to offences committed out of united kingthe United Kingdom, the ninth section enacts, that they may be dom. prosecuted in the Court of King's Bench at Westminster, the venue being laid at Westminster, in the county of Middlesex. (d)

The mutiny act, 6 Geo. 4. c. 5. s. 155. enacts“ that if any 6 G. 4. c. 5. s.

person or persons shall in any part of his Majesty's dominions, 155. Persons “ directly or indirectly persuade or procure any soldier or sol- soldiers to de“ diers in the service of his Majesty, his heirs or successors, to sert, to be pu“ desert or leave such service as aforesaid, every such person or

nished by fine

or imprisonpersons so offending as aforesaid, and being thereof lawfully ment, or both. “ convicted, shall suffer such punishment by fine or imprison“ ment, or both, as the court before which the conviction may “ take place shall adjudge.”

It may be observed, though not strictly applicable to the sub- Disobedience ject of this Chapter, that disobedience to the king's letter to a commands to subject commanding him to return from beyond the seas, or to return, or to the king's writ of Ne exeat regno, commanding a subject to stay stay at home, at home, is a high misprision and contempt. (i) And it is also a assist the king high offence to refuse to assist the king for the good of the public, in council or either in councils, by advice, if called upon, or in his wars by per- war. sonal service for the defence of the realm against a rebellion or

been commit

(a) Sect. 4.
(b) Ibid.
(c) Ibid.

(d) By s. 5. vessels with persons on board engaged in foreign service may be detained in any part of his Majesty's dominions, information being laid upon oath. By s. 6. a penalty is imposed on masters of vessels, &c. knowingly taking on board persons enlisted contrary to the act. But by

s. 12. the penalties of the act are not
to extend to any person entering into
the service of any prince, &c. in Asia,
with leave from the Governor Genc-
ral in Council, &c. at Bengal.

(i) 4 Blac. Com. 122. And if the
subject neglects to return from be-
yond the seas, when commanded,
his lands shall be seised till he does
return, 1 Hawk. P. C. c. 22. s. 4.

invasion: (k) ander which class may be ranked the neglecting to join the posse comitatus, or power of the county, being thereunto required by the sheriff or justices, according to the statute 2 Henry 5. c. 8. which is a duty incumbent upon all that are fifteen years of age, under the degree of nobility, and able to travel. (1)

(1) I Hawk. P.C. c. 22. s. 2. (1) 4 Bla. Com. 122. Lamb. Eir. 315,

CHAPTER THE SEVENTH.

OF SEDUCING SOLDIERS AND SAILORS TO DESERT OR MUTINY.

In consequence of the attempts of evil disposed persons by the 37 G. 3. c.70. publication of written or printed papers, and by malicious and seducing sol. advised speaking, to seduce soldiers and sailors from their duty felony without and allegiance to his Majesty, the 37 Geo. 3. c. 70. was passed, benefit of enacting “ that any person who shall maliciously and advisedly clergy. “ endeavour to seduce any person or persons serving in his “ Majesty's forces by sea or land, from his or their duty and alle

giance to his Majesty, or to incite or stir up any such person or

persons to commit any act of mutiny, or to make, or endeavour “ to make, any mutinous assembly, or to commit any traitorous or “mutinous practice whatsoever, shall, on being legally convicted “ of such offence, be adjudged guilty of felony, and shall suffer “ death as in cases of felony without benefit of clergy." The third section of the act provides, that any person tried, acquitted, or convicted, of any offence against this act shall not be liable to be prosecuted again for the same offence or fact, as high treason, or misprision of high treason; and that nothing in the act contained shall prevent the trial of any person who has not been tried for an offence against this act from being tried for the same as high treason, or misprision of high treason. And it is provided by the second section, that any offence against this act, whether committed on the high seas or in England, may be prosecuted and tried before any court of oyer and terminer, or gaol Trial. delivery, for any county in England, as if the said offence had been therein conmitted. It was decided that a sailor in a sick hospital where he had been for thirty days, and therefore was not entitled to pay, nor liable for what he then did to answer before a court martial, was nevertheless a person serving in his Majesty's forces by sea within this statute, so as to make the seducing him an offence within its provisions. (a)

It has been decided, that an indictment upon this statute need Indictment.not set out the means used for seducing the soldier from his duty and allegiance; and that it need not aver that the prisoner knew the person endeavoured to be seduced to be a soldier. It seems also that a double act, namely, that the prisoner endeavoured to incite a soldier to commit mutiny, and also to commit traitorous and mutinous practices, may be charged in one count of the indictment. (6)

East. P. C. c. 2, s. 33. p. 92. 1 Bos.
and Pul. 180.

(a) Rex v. Tierney, Mich. T. 1904. Russ. and Ry. 74.

(b) Fuller's case, 2 Leach 790. 1 VOL. 1,

H

C.

persons per

This act of the 37 Geo. 3. c. 70. was only temporary: but, after having been continued from time to time by different statutes, was recently made perpetual (together with an act upon the same subject, passed at the same time in the parliament of Ireland,) by the 57 Geo. 3. c. 7.

By the statute 1 Geo. 1. c. 47. persons persuading or procuring soldiers to desert are subjected to a penalty, and under certain circumstances to imprisonment: and the late mutiny act, 6 Geo. 4.

5. s. 155., subjects persons so offending to punishment by fine

or imprisonment, or both. I G. 1. c. 47. The statute 1 Geo. 1. c. 47. enacts, that if any person (other suading, &c.

than enlisted soldiers, against whom it is stated sufficient remedy soldiers to de- was already provided by law,) shall, in Great Britain, Ireland, sert, liable to Jersey, or Guernsey, persuade or procure any soldier to desert, he imprisonment.

shall forfeit 401. to be recovered by any informer; and if he has not property to that amount, or from the heinous circumstances of the crime it shall be thought proper, the court before whom

he is convicted shall imprison him, not exceeding six months. 6 G. 4. c. 5.

Sect. 155 of the 6 G. 4. c. 5. enacts that if any person or persons shall, in any part of His Majesty's dominions, directly or indirectly persuade or procure any soldier or soldiers in the service of his Majesty, his heirs or successors, to desert or leave such service, every such person or persons so offending and being lawfully convicted, shall suffer such punishment by fine or imprisonment, or both, as the court before which the conviction may take place shall adjudge. The punishment of the pillory was added to the imprisonment by former mutiny acts, but a statute 56 Geo. 3. c. 138. enacts, that from the passing of that act judgment shall not be given and awarded against any person convicted of any offence, that such person do stand in or upon the pillory, except for the offences of perjury and subornation of perjury, any law, statute, or usage to the contrary notwithstanding. The statute 1 Geo. 1. c. 47. also added the punishment of the pillory; and upon an information filed in the Court of King's Bench upon that statute, prior to the 56 Geo. 3. c. 138. and tried at the assizes, it was held that it was necessary, if the court awarded imprisonment in addition to the 401. penalty, to award the pillory also. (c) It was also decided in the same case, that the Court of King's Bench was the proper Court to award the punishment upon such information, and that it ought not to be awarded at the assizes where the trial and conviction took place. (d) The 6 Geo. 4. c. 5. s. 154. imposes a pecuniary penalty on persons concealing de

serters. Consequences With respect to the consequences to the party deserting, it of desertion to the party de

may be observed, that desertion in time of war was made a capital serting. crime by 18 Hen. 6. c. 19. enforced by 2 and 3 Edw. 6. c. 2. s 6.

repealed as to the felony by 1 M. sess. 1. c. 1. revived by 4 and 5 Ph. and M. c. 3, s. 9. and extended to mariners and gunners by 5 Eliz. c. 5. s. 27. But these statutes are now fallen into disuse, as well on account of the manner of retaining soldiers therein referred to being no longer adopted, as because, since the annual

(c) Rex v. Rcad, 16 Last. 104.

(d) Id. Ibid.

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